DOMINGUEZ v. WARDEN THOMPSON, FCI FT. DIX
Filing
11
OPINION. Signed by Chief Judge Renee Marie Bumb on 5/8/2024. (sms2)
NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
JOEL LEOVALDO DOMINGUEZ, :
:
Petitioner
:
:
v.
:
:
WARDEN THOMPSON,
:
FCI FORT DIX,
:
:
Respondents
:
CIV. NO. 24-2743 (RMB)
OPINION
RENÉE MARIE BUMB, Chief United States District Judge
This matter comes before the Court upon Petitioner Joel Leovaldo
Dominguez’s petition for writ of habeas corpus under 28 U.S.C. § 2241 (Pet., Dkt.
No. 1), Petitioner’s emergency motion for a preliminary injunction (Mot. for P.I.,
Dkt. No. 3), Respondent’s answer in opposition to habeas and preliminary injunctive
relief (Answer, Dkt. No. 6), Petitioner’s reply brief (Reply Brief, Dkt. No. 8),
Respondent’s supplemental answer (Dkt. No. 9), 1 and Petitioner’s reply to
Respondent’s supplemental answer (Suppl. Reply Brief, Dkt. No. 10.) Petitioner is a
prisoner confined in the Federal Correctional Institution in Fort Dix, New Jersey
(“FCI Fort Dix.”) He seeks credit against his federal sentence for time served
On April 12, 2024, this Court ordered Respondent to submit a supplemental brief
addressing Petitioner’s argument under U.S.S.G. § 5G1.3(c) and to submit Petitioner’s
federal sentencing transcript.
1
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concurrently on a state court sentence, which would lead to his earlier release from
prison. For the reasons discussed below, the Court will deny the habeas petition on
the merits and dismiss Petitioner’s motion for preliminary injunctive relief as moot.
I.
BACKGROUND
Petitioner was arrested in Pennsylvania on May 17, 2023, for providing false
identification to law enforcement officers. (Answer, Declaration of Stacy Fanello
(“Fanello Decl.”) ¶ 3 and Attach. 1, Dkt. No. 6-1 at 9.) As a result, he was detained
in Lebanon County Prison in Lebanon, Pennsylvania. (Id. and Attach. 2, Dkt. No.
6-1 at 15.) Two weeks later, on May 31, 2023, Petitioner was indicted in federal
court, the Middle District of Pennsylvania, for illegal re-entry into the United States,
in violation of 8 U.S.C. § 1326(a) & (b)(1), 6 U.S.C. §§ 203(3)–(4), 557. United States
v. Leovaldo Dominguez, Crim. No. 23-cr-139 (M.D. Pa. May 31, 2023) (“United States
v. Dominguez”), Dkt. No. 1. 2 On August 28, 2023, the federal court filed a writ of
habeas corpus ad prosequendum to obtain Petitioner’s appearance for sentencing.
(Answer, Fanello Decl. ¶ 4 and Attach. 2, Dkt. No. 6-1 at 15.) On August 29, 2023,
Petitioner was sentenced in federal court, the Middle District of Pennsylvania, to a
twelve-month and one-day term of imprisonment, with a three-year term of
supervised release. (Id. ¶ 5 and Attach. 3, Dkt. No. 6-1 at 18.) Petitioner’s Judgment
provides that “[i]t is the intention of the [c]ourt that this sentence be served
2
See Public Access to Court Electronic Records, available at www.pacer.gov.
2
concurrent with any sentence that may be imposed at Lebanon County Dkt. No:
696-2023.” (Fanello Decl., Attach. 3, Dkt. No. 6-1 at 18.)
Upon returning to state court on September 20, 2023, Petitioner was sentenced
in the Court of Common Pleas, Lebanon County, Dkt. No. 696-2023 to a minimum
term of time-served and a maximum term of one year. (Id. ¶ 6 and Attach. 4, Dkt.
No. 6-1 at 25-27.) The state court awarded Petitioner credit for presentence time
served between May 17, 2023, and September 20, 2023 (126 days), and ordered
Petitioner released from state custody as of September 20, 2023. (Id.)
Petitioner was taken into exclusive federal custody on September 25, 2023.
(Id. ¶ 7 and Attach. 6, Dkt. No. 6-1 at 37.) The Federal Bureau of Prison’s (“BOP”)
Designation and Sentence Computation Center (“DSCC”) calculated Petitioner’s
federal sentence, taking into account that the twelve-month and one-day term of
imprisonment represented a downward variance, consistent with the federal court’s
intent that Petitioner’s federal sentence run concurrent with his state sentence. (Id. ¶
8 and Attach. 5, Dkt. No. 6-1 at 33.) DSCC commenced Petitioner’s federal
sentence on August 29, 2023—the date it was imposed. (Id.) DSCC did not award
Petitioner prior custody credit toward his federal sentence for the time between his
arrest on May 17, 2023, and his federal sentencing on August 28, 2023, because that
time had already been credited toward Petitioner’s state sentence. (Id.) DSCC
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found Petitioner was not entitled to Willis 3 or Kayfez 4 credit. (Fanello Decl. ¶ 11 and
Attach. 7, Dkt. No.. 6-1 at 39-40.) Thus, assuming Petitioner receives all good
conduct time available to him, his projected release date from BOP custody is July 6,
2024. (Id.)
II.
THE PETITION, ANSWER, AND REPLY BRIEFS
Petitioner alleges BOP improperly calculated his federal sentence by failing to
credit 126 days of prior custody credit for the period of time Petitioner spent in state
custody between his arrest on May 17, 2023, and his state sentencing on September
20, 2023, as directed by the federal sentencing court under U.S.S.G. § 5G1.3(c).
(Pet., Dkt. No. 1; Petr’s. Mem., Dkt. No. 1-1.) Petitioner contends that the federal
sentencing court imposed a downward variance for time served, as reflected in the
Statement of Reasons. (Petr’s Mem., Dkt. No. 1-1 at 7.) Petitioner acknowledges
that the federal sentencing judge did not explicitly state that she was adjusting
Petitioner’s sentence under U.S.S.G. § 5G1.3(c), but it was clearly her intent to do so
by specifying that his federal sentence run concurrently with a particular anticipated
state sentence. (Id. at 9.)
This Court ordered Respondent to file an expedited answer and a response to
Petitioner’s emergency motion for preliminary injunctive relief. (Order, Dkt. No. 4.)
Subsequently, the Court ordered Respondent to file a supplemental answer and
3
Willis v. United States, 438 F.2d 923 (5th Cir. 1971).
4
Kayfez v. Gasele, 993 F.2d 1288 (7th Cir. 1993).
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submit a copy of Petitioner’s federal sentencing transcript. (Text Order, Dkt. No. 7.)
Respondent contends the petition should be dismissed because Petitioner
failed to exhaustion his administrative remedies before seeking habeas relief under 28
U.S.C. § 2241. (Answer, Dkt. No. 6 at 8-10 and Declaration of Christina Clark, Dkt.
No. 6-2.) Alternatively, Respondent argues BOP properly determined Petitioner’s
sentence under 18 U.S.C. § 3585, and the narrow exceptions to the double counting
prohibition in 18 U.S.C. § 3585(b) that were announced in Willis, supra n. 3 and
Kayfez, supra n. 4. (Id. at 5-8.) In reply, Petitioner contends he is entitled to prior
custody credit for 126 days of presentence custody pursuant to U.S.S.G. § 5G1.3(c)
or alternatively, Respondent miscalculated his Kayfez credit. (Reply Brief, Dkt. No.
5.) Respondent, in a supplemental brief in opposition to habeas or preliminary
injunctive relief, maintains that BOP’s sentence calculation reflects the federal
sentencing court’s concurrent sentence determination under U.S.S.G. § 5G1.3(c).
(Suppl. Brief, Dkt. No. 9 at 1 and Declaration of Kevin Maggio, Dkt. No. 9-1.) In
Petitioner’s supplemental reply brief, he acknowledges that BOP calculated his
federal sentence to give effect to the federal sentencing court’s U.S.S.G. § 5G1.3(c)
adjustment, but that BOP miscalculated his Kayfez credit by conflating an
“adjustment” to a federal sentence under 18 U.S.C. § 3584 with the term “credit” in
§ 3585(b), resulting in the wrongful exclusion of 90 days in the Kayfez calculation.
(Suppl. Reply Brief, Dkt. No. 10.)
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IV.
DISCUSSION
A.
Exhaustion of Administrative Remedies
Before a federal inmate can seek habeas relief under 28 U.S.C. § 2241, he must
ordinarily exhaust his administrative remedies. Vasquez v. Strada, 684 F.3d 431,
433 (3d Cir. 2012); Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 760 (3d Cir.
1996). The judicially imposed exhaustion requirement serves the following purposes:
1) facilitates judicial review by allowing the appropriate agency to develop a factual
record and apply its expertise; (2) conserves judicial resources by permitting agencies
to grant the relief requested; and (3) fosters administrative autonomy by providing
agencies the opportunity to correct their own errors. Moscato, 98 F.3d at 761-62
(citations omitted). A failure to exhaust administrative remedies “may be excused if
an attempt to obtain relief would be futile or where the purposes of exhaustion would
not be served.” Cerverizzo v. Yost, 380 F. App’x 115, 116 (3d Cir. 2010) (citations
omitted).
Petitioner acknowledges that he did not exhaust administrative remedies prior
to filing the instant habeas petition, but he alleges a BOP staff member imposed
additional exhaustion requirements, beyond those in the regulations, which delayed
his ability to obtain relief, and placed him in jeopardy of remaining in prison beyond
his sentence expiration. (Petr’s Mem., Dkt. No. 1-1 at 6-8.) Petitioner’s
circumstances do not fit squarely within the futility exception to the exhaustion
requirement. Nonetheless, a court has discretion to excuse the failure to exhaust and
reach the merits in a § 2241 habeas matter. Ridley v. Smith, 179 F. App'x 109, 111 (3d
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Cir. 2006) (citations omitted). Because Petitioner is not entitled to relief on the
merits, the Court will not require administrative exhaustion.
B.
Petitioner’s Federal Sentencing Memorandum, Sentencing Transcript
and Judgment of Conviction
On August 11, 2023, Petitioner’s counsel filed a sentencing memorandum on
Petitioner’s behalf in United States v. Dominguez, recommending a downward variance
from the Guidelines range sentence for the following reasons. Petitioner is a native
of the Dominican Republic and had been removed from the United States in 2018,
after serving a sentence for possessing a controlled substance in New York. United
States v. Dominguez, Dkt. No. 23. On May 17, 2023, Petitioner was arrested in
Lebanon County, Pennsylvania for giving a false name to police. ICE was contacted
and placed a detainer on Petitioner, who was in pretrial custody in Lebanon County,
Pennsylvania. On May 31, 2023, Petitioner was federally charged with illegal
reentry under 8 U.S.C. § 1326(a). He pled guilty to the federal charge, and his
expected federal Guidelines range at that time was 15-21 months. Petitioner’s
counsel requested that the sentencing court depart downward from the Guidelines
range for two reasons: (1) Petitioner had been in state pretrial custody for three
months for relevant conduct, and he would spend time after expiration of his
sentence in immigration custody awaiting removal; and (2) the Government could
save the costs of confinement for a federal sentence by removing Petitioner from the
country sooner. Petitioner’s counsel stated it was “abundantly clear that his [state
criminal] conduct was relevant to his illegal re-entry and the attempt to avoid
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detection for that offense under U.S.S..G. § 1B1.3(a)(1).” Thus, he argued for
application of U.S.S.G. § 5G1.3(c). Petitioner’s counsel requested “a sentence of
three months’ imprisonment concurrent with the anticipated sentence to be imposed
in Lebanon County Court of Common Pleas case number CP-38-CR-00006962023.”
Petitioner’s federal sentence was imposed on August 29, 2023, by the
Honorable Sylvia H. Rambo, U.S. District Judge, Middle District of Pennsylvania.
(Suppl. Brief, Ex. 1, Dkt. No. 9-1.) Upon acceptance of Petitioner’s guilty plea, his
counsel argued for a downward variance from the guidelines range, and that the
“sentence be imposed to run concurrently with the anticipated state sentence on the
local charge which is relevant conduct to his federal charge.” (Id. at 12.) The
sentencing court imposed a one-year and one-day term of imprisonment, stating “[i]t
is the intention of the Court that this sentence be served concurrent to any sentence
that may be imposed at Lebanon County Docket No. 696-2023. (Id. at 14.) The
Court added, “this sentence varies from the guideline range based on the Defendant’s
motion for a variance.” (Id.) Furthermore, “[t]he Court should also make the
following finding: Since he was not in prison, but as under Lebanon County Prison,
he can no longer get any consideration for time served.” (Id. at 16.)
C.
BOP’s Sentence Calculation
BOP, through the DSCC, commenced Petitioner’s one-year and one-day
federal sentence on the date of imposition. (Fanello, ¶ 8 and Attach. 6, Dkt. No. 6-1
at 35.) Petitioner did not receive any prior custody credit for May 17, 2023 through
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September 20, 2023, because he was awarded presentence custody credit for those
days against his state sentence. (Fanello Decl.¶ 8 and Attach 5, Dkt. No. 6-1 at 3234.) The next step in calculating Petitioner’s sentence was to determine whether
Petitioner was entitled to prior custody credit under Willis or Kayfez, and BOP
determined Petitioner was not entitled to any further credit. (Id. ¶¶ 9-12 and Attach
7, Dkt. No. 6-1 at 39-40.)
D.
Standard of Law
Petitioner’s federal sentence was imposed under U.S.S.G. § 5G1.3, Imposition
of a Sentence on a Defendant Subject to an Undischarged Term of Imprisonment or
Anticipated State Term of Imprisonment, effective from March 15, 2022, 5 which
provides:
(a) If the instant offense was committed while the
defendant was serving a term of imprisonment (including
work release, furlough, or escape status) or after
sentencing for, but before commencing service of, such
term of imprisonment, the sentence for the instant offense
shall be imposed to run consecutively to the undischarged
term of imprisonment.
(b) If subsection (a) does not apply, and a term of
imprisonment resulted from another offense that is
relevant conduct to the instant offense of conviction under
the provisions of subsections (a)(1), (a)(2), or (a)(3) of §
1B1.3 (Relevant Conduct), the sentence for the instant
offense shall be imposed as follows:
(1) the court shall adjust the sentence for any period
of imprisonment already served on the
“District courts must begin their sentencing analysis with the Guidelines in effect at the
time of the offense ….” Peugh v. United States, 569 U.S. 530, 549 (2013). Petitioner’s federal
sentence was imposed on August 29, 2023.
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undischarged term of imprisonment if the court
determines that such period of imprisonment will
not be credited to the federal sentence by the Bureau
of Prisons; and
(2) the sentence for the instant offense shall be
imposed to run concurrently to the remainder of the
undischarged term of imprisonment.
(c) If subsection (a) does not apply, and a state term of
imprisonment is anticipated to result from another offense
that is relevant conduct to the instant offense of conviction
under the provisions of subsections (a)(1), (a)(2), or (a)(3)
of § 1B1.3 (Relevant Conduct), the sentence for the instant
offense shall be imposed to run concurrently to the
anticipated term of imprisonment.
(d) (Policy Statement) In any other case involving an
undischarged term of imprisonment, the sentence for the
instant offense may be imposed to run concurrently,
partially concurrently, or consecutively to the prior
undischarged term of imprisonment to achieve a
reasonable punishment for the instant offense.
U.S.S.G. § 5G1.3.
The BOP’s calculation of a federal sentence is governed by 18 U.S.C. § 3585,
which provides:
(a) Commencement of sentence.--A sentence to a term of
imprisonment commences on the date the defendant is
received in custody awaiting transportation to, or arrives
voluntarily to commence service of sentence at, the official
detention facility at which the sentence is to be served.
(b) Credit for prior custody.--A defendant shall be given
credit toward the service of a term of imprisonment for
any time he has spent in official detention prior to the date
the sentence commences—
(1) as a result of the offense for which the sentence
was imposed; or
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(2) as a result of any other charge for which the
defendant was arrested after the commission of the
offense for which the sentence was imposed;
that has not been credited against another sentence.
“Congress made clear that a defendant could not receive a double credit for his
detention time.” United States v. Wilson, 503 U.S. 329, 337 (1992).
In Willis and Kayfez, 6 the Fifth and Seventh Circuits created two narrow
exceptions to 18 U.S.C. § 3585(b)’s “double-counting” prohibition. Taccetta v. Fed.
Bureau of Prisons, 606 F. App’x 661, 664 (3d Cir. 2015). “Those rules are now applied
nationwide by way of [BOP Program Statement 5880.28], which provides that a
federal prisoner can receive credit from both sovereigns for a particular stretch of
incarceration under a narrow set of circumstances involving the [raw] ‘effective full
term’ ([Raw] EFT) of each sentence.” Id. (citing P.S. 5880.28 at 1-14). “The Raw
EFT for both a federal and [state] sentence is determined by adding the total length
of the sentence to be served to the beginning date of the sentence[,] resulting in a full
term date of sentence (Raw EFT) that does not include any time credit, e.g.,
presentence or prior custody time or good time.” P.S. 5880.28 at 1-14.
A defendant is entitled to Willis credit “only if: (1) the state and federal
sentences are concurrent; and (2) the state [raw] EFT is equal to or shorter than the
federal [raw] EFT.” Taccetta, 606 F. App’x at 664 (citing P.S. 5880.28 at 1-22 to 122A). A defendant is entitled to Kayfez credit “only if: (1) the state and federal
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See supra n. 3 and n. 4.
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sentences are concurrent[;] (2) the state [raw] EFT is greater than the federal [raw]
EFT; and (3) the state EFT, after application of qualified presentence time, is
reduced to a date that is earlier than the federal [raw] EFT.” Id. (citing P.S. 5880.28
at 1-22B to 1-23A). Willis and Kayfez credits are intended to address situations in
which “credit against a concurrent state sentence ‘would not benefit the defendant
except that he would be serving only one sentence instead of two concurrent ones.
Crediting the disputed period against [the defendant’s] federal sentence w[ould]
correct the problem.’” Id. (quoting Kayfez, 993 F.2d at 1290).
E.
Analysis
Based on Petitioner’s sentencing memorandum, his sentencing transcript, and
judgment, it is apparent that Petitioner received a downward variance from the 1521-months Guidelines range on his federal sentence under U.S.S.G. § 5G1.3(c), the
purpose of which was to reduce his federal sentence to achieve a sentence concurrent
with his anticipated state sentence. Thus, by imposing a shorter federal sentence
than the federal court otherwise would have imposed, the sentence had the same
effect on the duration of Petitioner’s custody as if Petitioner received prior custody
credit against his federal sentence for time served from May 17, 2026 through August
28, 2023, the day before his federal sentence began to run. See Rashid v. Quintana, 372
F. App'x 260, 262 (3d Cir. 2010) (“a federal sentence cannot begin to run earlier than
on the date on which it is imposed”) (citation omitted). BOP was not required to
award Petitioner prior custody credit to achieve the federal sentencing court’s
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intended concurrent sentence, because the federal sentencing court accomplished this
by a downward variance in the federal sentence.
Accordingly, BOP reviewed Petitioner’s federal sentence computation to
determine if he was entitled to Willis or Kayfez credit. (Fanello Decl. ¶ 12.) In his
supplemental reply brief, Petitioner contends that when BOP determined his
eligibility for Kayfez credit, it should not have excluded from the “qualified
presentence time” the period accounted for by the federal sentencing court’s
downward variance, May 17, 2023 through August 28, 2023.
The BOP formula for calculating Kayfez credit, in situations where non-federal
and federal sentences are concurrent, is to determine whether “the Raw EFT of the
non-federal term is greater than the Raw EFT of the federal term, and if the nonfederal Raw EFT, after application of qualified non-federal presentence time, is
reduced to a date that is earlier than the Raw federal EFT, Kayfez credit is applied to
the non-federal Raw EFT.” BOP Program Statement 5880.28, Pages 1-21 through
23. 7 BOP defines “qualified non-federal presentence time” as:
[t]ime spent in non-federal presentence custody from the
date of the federal offense, that does not overlap any other
authorized prior custody time credits, to the date the first
sentence begins to run, federal or non-federal….
Change Notice, Sentence Computation Manual-CCCA, available at
www.bop.gov/policy/progstat.
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Id., Page 1 - 14A. Petitioner’s federal Raw EFT is August 29, 2024, and Petitioner’s
state Raw EFT is September 19, 2024. (Fanello Decl., ¶ 12 and Attach. 7 at 39.) 8
Petitioner’s minimum state sentence of “time served” consisted of the 126 days
between Petitioner’s arrest on May 17, 2023, and the imposition of his state sentence
and release from state custody on September 20, 2023. (Fanello Decl. ¶ 6 and
Attach. 4 at 27.) Petitioner’s federal sentence commenced on August 29, 2023, and
was ordered to run concurrent with his state sentence. (Fanello Decl. ¶ 8 and
Attach. 3 at 18.) Petitioner’s state Raw EFT is greater than his federal Raw EFT;
therefore, the BOP considered how much qualified state presentence time could be
applied to Petitioner’s state Raw EFT. (Fanello Decl. ¶ 11 and Attach. 7 at 40.)
To account for the federal sentencing court’s downward variance by three
months, BOP excluded this period from qualified non-federal presentence time. The
downward variance accounted for 90 days, the time from Petitioner’s May 17, 2023
arrest through August 14, 2023. (Fanello ¶ 11.) Instead, BOP considered the
qualified non-federal presentence time under the Kayfez analysis as the 14-day period
between August 15, 2023 (i.e., the day after the three-month period accounted for by
the downward variance) and August 28, 2023 (i.e., the day before Petitioner’s federal
sentence was imposed). (Id. ¶ 11, Attach. 7, Dkt. No. 6-1 at 39-40.) Application of
those 14 days toward Petitioner’s state Raw EFT resulted in a state Adjusted EFT of
Based on this calculation, BOP properly determined Petitioner was not entitled to Willis
credit because his state raw EFT is greater than his federal raw EFT. See, e.g., Taccetta, 606
F. App’x 664-65.
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September 5, 2024. (Id. ¶ 12, Attach. 7 at 40.) Petitioner’s state Raw EFT
(September 5, 2024) was greater than his federal Raw EFT (August 29, 2024).
Therefore, BOP did not award Petitioner Kayfez credit.
By giving Petitioner a downward variance from the Guidelines range, the
federal sentencing court, in effect, gave Petitioner credit for state presentence custody
against his concurrent federal sentence, knowing BOP would not award such credit
because it is prohibited by 18 U.S.C. § 3585(b). Petitioner’s federal Raw EFT
represents the sentence intended by the federal court, one year and one day from the
date his federal sentence was imposed. This is why the federal sentencing court
stated, “he can no longer get any consideration for time served.” (Suppl. Brief, Ex. 1
[federal sentencing transcript], Dkt. No. 9-1 at 16.) If BOP were to include this
period as part of qualified non-federal presentence time in calculating Kayfez credit,
as Petitioner suggests, it would frustrate the federal sentencing court’s intended
sentence. Therefore, it was not error for the BOP to exclude this period in the Kayfez
calculation.
V.
CONCLUSION
For the reasons set forth above, the Court denies habeas relief. Having
determined the petition on the merits, the Court dismisses Petitioner’s motion for
preliminary injunctive relief as moot.
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An appropriate order follows.
DATE: May 8, 2024
s/Renée Marie Bumb
RENÉE MARIE BUMB
Chief United States District Judge
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